1
Fair Work Act 2009
s 365—General protections
James Bailey
v
Multiplex Constructions Pty Ltd
(C2024/4672)
COMMISSIONER LIM PERTH, 24 SEPTEMBER 2024
Application to deal with contraventions involving dismissal – jurisdictional objection – not
dismissed – objection sustained – applicant not an employee – application dismissed.
1. What this decision is about
[1] Mr James Bailey has applied to the Fair Work Commission under s 365 of the Fair Work
Act 2009 alleging that Multiplex Constructions Pty Ltd contravened Part 3-1 of the Act by
dismissing him from his employment. Multiplex objects to Mr Bailey’s application on the basis
it did not employ him, and therefore cannot have dismissed him.
[2] Before Mr Bailey’s application can proceed, I must determine whether Multiplex
dismissed him. In Coles Supply Chain Pty Ltd v Milford,1 the Full Court of the Federal Court
held that where there is a question over jurisdiction – as is the case here – the Commission must
determine the jurisdictional issue before exercising its powers under s 368 of the Act.2
[3] I conducted a hearing of the jurisdictional objection on Thursday 5 September 2024.
The parties represented themselves. Mr Bailey gave evidence and was cross-examined.
Multiplex relied on the uncontested evidence of Ms Louise Paterson.
[4] Having considered the relevant evidence and submissions of the parties, I have found
that Multiplex did not employ Mr Bailey. It follows that they could not dismiss him. Mr Bailey’s
application must be dismissed.
[5] My detailed reasons for my decision follow.
2. Background
[6] The facts in this matter are largely uncontested between the parties.
[2024] FWC 2624
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 2624
2
[7] On or around February 2024, Mr Bailey was engaged by Protech Personnel (WA) Pty
Ltd as a casual builder’s labourer and hoist operator to perform work for Multiplex at the ECU
Inner City Campus construction project. Protech is a labour hire company.
[8] In May 2024, Multiplex site management approached Mr Bailey and asked him if he
wanted to become a direct employee of Multiplex under clause 18.3(k) of the Multiplex
Australasia Pty Ltd and CFMEU (WA) Enterprise Agreement 2024-2027.
[9] Ms Paterson’s witness statement outlines the next steps that occurred:
a) On Tuesday 28 May 2024 Multiplex site management asked her to start the Multiplex
onboarding process for Mr Bailey. That same day, Ms Patterson contacted Mr Bailey to
inform him of the onboarding process, required documents and the pre-employment
medical assessment. Mr Bailey provided the requested documents that day.
b) From Friday 31 May to Tuesday 18 June 2024, Mr Bailey attended to the pre-
employment medical clearance requirements.
c) On Tuesday 18 June 2024, Mr Bailey called Ms Paterson to inform her he had passed
the medical assessment. Ms Paterson’s evidence is that she said words to the effect,
“fantastic news…I still can’t act on anything until I receive the medical results from
Complete Corporate Health which may take some time…Let’s leave your proposed Start
Date as the 1 July for now, as this may still be achievable”.3
[10] On Tuesday 25 June 2024, Mr Bailey attended a meeting with Multiplex site
management representatives. He was informed that his services on site were no longer required.
Mr Bailey says that this action was taken against him because he had made safety complaints
on site.
[11] Ms Paterson’s evidence is that on Wednesday 26 June 2024, the Multiplex Senior
Human Resources Manager informed Ms Paterson that the project team had advised her that
Mr Bailey’s onboarding process was no longer proceeding.
[12] Mr Bailey confirmed during cross-examination that Multiplex had never issued Mr
Bailey with an employment contract for him to sign and that he had never received
remuneration from Multiplex.
3. Mr Bailey was not an employee, and therefore could not be dismissed
[13] Mr Bailey’s application has been made under s 365, which requires a person to be
dismissed. ‘Dismissed’ is defined in s 12 of the Act, which refers to s 386. Under s 386, a
dismissal requires either termination on the employer’s initiative or a forced resignation due to
the employer’s conduct. Both prongs of the section reference an employer. Section 386 of the
Act therefore only applies to employers and their employees.
[14] Accordingly, for there to have been a dismissal, there must have been an employment
relationship and/or employment contract.4
[2024] FWC 2624
3
[15] The parties agree, and I accept, that:
a) When Mr Bailey was conducting work at the ECU Project, he was employed by Protech.
b) Mr Bailey had commenced the onboarding process to become a direct employee of
Multiplex and there had been discussion of a start date of Monday 1 July 2024.
c) As of Tuesday 25 June 2024, Multiplex had not provided Mr Bailey with an
employment contract to sign.
[16] Based on the above, I find that there was no employment relationship between Mr Bailey
and Multiplex. Mr Bailey even conceded during the hearing that he was not a ‘direct employee’
of Multiplex. It follows that Multiplex could not dismiss him.
[17] Mr Bailey submitted that labour hire employees are protected by the general protections
provisions in the Act and cited several case authorities in support of this.5 Mr Bailey is correct
that labour hire employees are not excluded from accessing the general protections provisions.
However, Mr Bailey has made his application under s 365, which requires a dismissal, as
opposed to s 372 of the Act. I note that the cases that Mr Bailey relies on do not help his
argument, as those cases made findings on adverse action other than dismissal.
[18] Mr Bailey also argued that he was a prospective employee and therefore has the same
workplace rights as if he were a direct employee. Mr Bailey relied on the decision of Deputy
President Anderson in Payne v Sigma.6 Mr Bailey cites the Deputy President’s decision at [30],
where the Deputy President observed that for a person to be a “prospective employee” there
must be negotiation in some form for a specific position to be underway. Mr Bailey’s argument
is that there were significant negotiations for him to become a direct employee and therefore he
was a prospective employee.
[19] Unfortunately, the Deputy President’s decision does not support Mr Bailey’s argument
that his s 365 application is within the Commission’s jurisdiction. I refer to the Deputy
President’s comments at [31]:
“Secondly, even if Mr Payne was a prospective employee, he was not dismissed from as no
employment relationship with Sigma had been entered into let alone terminated by Sigma. The
notion of being dismissed from employment whilst only a prospective employee (that is, yet to
be employed) is nonsensical.”
[20] I agree with the Deputy President’s comments and find that they apply equally to Mr
Bailey’s circumstances. In this case, Mr Bailey was not an employee of Multiplex, and even if
he was a prospective employee, he still could not be dismissed. The Commission does not have
jurisdiction to deal with his application under s 365 of the Act.
[21] Accordingly, I order that Mr Bailey’s application be dismissed.
[2024] FWC 2624
4
COMMISSIONER
Appearances:
J Bailey, Applicant.
C Morgan for the Respondent.
Hearing details:
2024.
5 September.
Perth.
Printed by authority of the Commonwealth Government Printer
PR779542
1 [2022] FCAFC 152.
2 Ibid at [51].
3 Digital Court Book page 44.
4 Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFC 5162; NSW Trains v James [2022] FWCFB 55.
5 Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd [2023] FCA 30;
Mining and Energy Union v BM Alliance Coal Operations Pty Ltd (No 2) [2023] FCA 1594.
6 Jesse Payne v Sigma Company Ltd [2022] FWC 933.
FAIR WORK COMMISSION HE SEAL OF THE
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb55.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc933.htm
